Cheriyan K. Paul @ Kunjachan v. Manoj K.R. and The Branch Manager, National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA,`** ``` 1943 ``` ## **`MACA NO. 2145 OF 2013`** ``` AGAINST THE AWARD IN OP(MV) 297/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` CHERIYAN K.PAUL @ KUNJACHAN, S/O. PAILY, RESIDING AT KOOTTAPAL HOUSE, VALAKOM VILLAGE, KUNNACKAL KARA, MUVATTUPUZHA. ``` ``` BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MANOJ K.R., S/O. RAVI K.K., KOKKAPPIULLYIL HOUSE, OORAMANA P.O., RAMAMANGALAM, MUVATTUPUZHA-686 661. ``` ``` 2THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., KOLENCHERY, PIN-682 311. ``` ``` BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.A.R.GEORGE SRI.A.R.GEORGE SRI.PRASANTH M.P ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2145 of 2013 ``` 2 ## **`JUDGMENT`** ``` This appeal arises out of the award dated 19.06.2013 in O.P.(M.V) No.297/2008 on the file of the Motor Accidents Claims Tribunal, Muvattupzha. ``` ``` 2.The respondents herein are the respondents in the Tribunal. ``` ``` 3.Brief facts of the case: ``` ``` According to the petitioner, he met with an accident at 9:40 p.m on 10.12.2007 while he was ridingascooterfromOoramanato Peruvammoozhy, when he was hit down by an autorickshaw bearing registration no.KL-7AB- 7627 driven by the 1[st] respondent, came from the opposite direction in a rash and negligent manner. The petitioner, who sustained serious injuries approached the Tribunal and claimed compensation to the tune of Rs.3 lakh. ``` ``` M.A.C.A No.2145 of 2013 ``` **==> picture [7 x 9] intentionally omitted <==** ``` 4.The 1[st] respondent was set ex-parte by the Tribunal. ``` ``` 5.The 2[nd]respondent, the Insurance Company filed written statement and admitted the policy. But the quantum of compensation as well as negligence were disputed. Despite that recovery right was claimed on the ground that there was no Fitness Certificate to the vehicle at the time of accident. ``` ``` 6.The Tribunal adjudicated the matter after examining PW1, the doctor, who issued disability certificate and after marking Exts.A1 to A12 on the side of the petitioner. No evidence let in on the side of the Insurance Company. ``` ``` 7.The Tribunal appraised the evidence and finally granted Rs.2,08,900/- as compensation and the appellant is aggrieved on the quantum and hence this appeal. ``` ``` 8.The learned counsel appearing for the ``` ``` M.A.C.A No.2145 of 2013 ``` 4 ``` appellant submitted that the Tribunal fixed the monthly income of the petitioner as Rs.3,000/- though she claimed Rs.5,000/- as monthly income, as an agriculturist. Thus, he canvassed fixation of monthly income at Rs.5,000/- per month. ``` ``` 9.Inthedecisionreportedin ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : (2011) 13 SCC 236, the Honourable Apex Court fixed the monthly income of a coolie worker Rs.4,500/-, during 2004, and there is no justification to deny Rs.5,000/- as monthly income claimed by the appellant. The learned counsel for the Insurance Company also not disputed the ratio inRamachandrappa’scase (supra). Hence, Rs.5,000/- is fixed as the monthly income. ``` ``` 10.It is submitted by the learned counsel for the appellant that the appellant sustained very serious injuries and underwent treatment ``` ## **`M.A.C.A No.2145 of 2013`** **==> picture [7 x 9] intentionally omitted <==** ``` for 66 days. The Tribunal granted ‘loss of earnings’ for 9 months. Grant of ‘loss of earnings’ for 9 months by the Tribunal does not require interference as the same is reasonable in tune with injuries and corresponding treatment. However, the amount required to be re-calculated at the rate of Rs.5,000/- per month. Thus, Rs.18,000/- (45,000 – 27,000) more is granted under the head ‘loss of earnings’. ``` ``` 11.The learned counsel for the appellant vehemently argued to convince this Court that the petitioner’s disability should have been fixed at 21% as per Ext.A10 disability certificate issued by PW1. According to the learned counsel for the appellant, the Tribunal reduced the disability to 11%, despite the fact that PW1 the author of Ext.A10 given evidence supporting Ext.A10 in full vigour. ``` ``` 12.While appreciating the question as to whether any increase in the percentage of ``` ## **`M.A.C.A No.2145 of 2013`** 6 ``` disability fixed by the Tribunal at 11% is required, a glimpse of the injuries and treatment underwent by the appellant is necessary. As per, Exts.A6, A7 and A8 documents, the wound certificate and discharge summaries, the following injuries could be gathered. ``` ``` “Closed fracture right femur. ``` ``` Medial condyle fracture right tibia. Lateral malleolus fracture right fibula. ``` ``` Carpo-metacarpal 2[nd], 3[rd], 4[th], 5[th] dislocation right. ``` ``` Bennet's fracture dislocation right (fracture base of metacarpal with dislocation)” ``` ``` 13.The treatment records would go to show that bone grafting of the Bennet’s fracture was done on 17.01.2008. PW1, who authored Ext.A10, supported 21% disability. He had filed affidavit in support of Ext.A10. During cross- ``` ``` M.A.C.A No.2145 of 2013 ``` 7 ``` examination of PW1, the only question asked was whether the doctor followed the guidelines issued by the Government of India for assessing the disability inclusive of one suggestion that the disability assessed by the doctor was on higher side. Thus, it has to be held that, in fact, no effective cross-examination carried out to shake the version of PW1 and Ext.A10. The injuries and treatment as discussed above would go to show that the disability fixed by the Tribunal at 11% required to be increased. ``` ``` 14.It is submitted by the learned counsel for the Insurance Company that Ext.A10 is not a certificate issued by the Medical Board and, therefore, the certificate issued by a single doctor assessing the whole body disability cannot be accepted as such. Though this submission seems to be having some force at the first blush, a second thought would pursued me to hold that a disability certificate issued by ``` ## **`M.A.C.A No.2145 of 2013`** 8 ``` the Medical Board can be accepted as such without examining the doctors, concerned. However, a disability certificate issued by a single doctor can be relied on to the extent, the author of the document give evidence to support his finding. If the single author of a disability certificate is not examined, the Tribunal can very well fix a lower percentage of disability. Here the author of Ext.A10, PW1, categorically supported Ext.A10 and nothing extractedduringcross-examinationto disbelieve him in any manner so as to have any reduction. Therefore, disability is re-fixed at 21%. Thus disability income required to be re- calculated thus, ``` ``` 5000x12x13x21% = 1,63,800/- ``` ``` Out of which, Rs.51,480/- was granted by the Tribunal and, therefore, Rs.1,12,320/- is granted as additional compensation under the head 'loss of disability income'. ``` ``` M.A.C.A No.2145 of 2013 ``` 9 ``` 15.The learned counsel canvassed increase under the heads ‘pain and sufferings’ and ‘loss of amenities’. The Tribunal granted Rs.20,000/- under the head ‘pain and sufferings’ and Rs.15,000/- under the head ‘loss of amenities’. It is submitted by the learned counsel for the Insurance Company that considering the accident was of the year 2007, the amount granted under these heads are fair and reasonable and any more increase not warranted. However, I am inclined to have normal increase under these heads, considering the nature of injuries as already pointed out. Therefore,Rs.7,000/- more is granted under the head ‘pain and sufferings’ andRs.5,000/- more is granted under the head ‘loss of amenities’. ``` ``` 16.Therefore, the appellant is entitled to get Rs.1,42,320/- more as compensation in addition to the amount of Rs.2,08,900/- granted by the Tribunal. Thus, the total amount of ``` ## **`M.A.C.A No.2145 of 2013`** 10 ``` compensation would be 2,08,900 + 1,42,320 = 3,51,220/-. ``` ``` 17.In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.3,51,220/- as compensation out of which Rs.2,08,900/- was granted by the Tribunal and the balance amount of Rs.1,42,320/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the 2[nd] respondent Insurance Company. ``` ``` 18.The appellant valued the claim at Rs.3,00,000/- and court fee payable is calculated as Rs.2,372.50/-. In view of grant of Rs.51,220/- in excess of the claim, the appellant is bound to deposit Rs.512/- as additional court fee. The Insurance Company is directed to deposit Rs.512/- as additional court fee by a separate cheque in favour of M.A.C.T. The Insurance Company is directed to deposit the remaining amount in the name of the ``` 11 ## **`M.A.C.A No.2145 of 2013`** ``` appellant within two months from today. ``` ``` 19.Right of recovery granted in favour of the Insurance Company from the insured by the Tribunal, is maintained and granted in relation to the enhanced sum also, after depositing the same in the name of the appellant with liberty to release the same, on deposit. ``` ``` Sd/- ``` ``` A.BADHARUDEEN, JUDGE. ``` ``` ww ```